Enforcement

Dec 21, 2012 – Ricky Curtis, 48, of Union and his son, Todd Curtis, 29, of South Thomaston have been charged with illegal possession of v-notched and mutilated lobsters after an investigation by the Maine Marine Patrol.

Over 400 of the illegal lobsters were discovered during an inspection of Mr. Curtis’ vessel “North Star” by Marine Patrol Specialist Matthew Talbot and Marine Patrol Officer Wesley Dean. The potential fine for illegal possession of this many v-notch and mutilated lobsters in Maine is over $190,000.
 
All lobstermen in the State of Maine participate in a mandatory v-notch program, requiring them to notch all egg-bearing lobsters prior to liberation. The practice of notching the tail of a known “breeder” extends her protection beyond the hatching of her eggs and plays a critical role in the conservation and propagation of Maine’s lobster resource.
 
“We consider this a very serious crime for a number of reasons,” said Colonel Joseph Fessenden, Chief of the Maine Marine Patrol. “The illegal taking of any lobsters negatively affects the resource and is a direct theft from those lobstermen who abide by the laws every day that they fish.”
 
It is illegal to keep v-notched lobsters or those that have been mutilated in a manner which could hide or obliterate the v-notch.  If a female lobster is carrying eggs, a v-notch tool or a sharp knife is used to remove a very small portion from the center of the tail’s flipper immediately to the right of the center flipper. This v-notch will remain through the next few molts allowing her to reproduce several more times.
 
An arraignment for the two men has been scheduled for January 14 in Knox County District Court.

 

Read the full story on Fox Bangor 

 

 

 

 

 

 

December 14, 2012 — Without an apology, the Commerce Department on Friday closed the book on past violations of fishing industry rights by NOAA law enforcers with a carefully reasoned memorandum.

The memorandum adopted most but not all of the recommendations of a special judicial master whose second volume of case studies found reason for reparations or the forgiveness of unpaid fines in 18 of 63 cases.

In all, Acting Commerce Secretary Rebecca M. Blank approved $564,794 in reparations (or “remissions”) in 14 cases and forgave debts of $161,266.66 in two others.

Together with $649,527 in reparations from the first volume of case studies by the special master, Charles B. Swartwood III, in May, 2011, NOAA will have paid or forgiven $2,375,587.66 to settle the score with the fishing industry.

Blank took minute exception in a number of cases studied and analyzed in a 554-page report that was not released with the secretarial memorandum decision, which in turn was released after a press release explaining that the National Oceanic and Atmospheric Administration had fixed its law enforcement problems. The release, from the Commerce Department, which oversees NOAA, also said that the reparations and adjusted settlements demonstrated an extraordinary effort by NOAA to set things right with the fishing industry.

The announcement of the second volume of settlements was made by email in late morning, giving the press no one to question, and at least until late in the day, no access to the work product of the special master (which was posted about 5:30 p.m. Friday, too late to be studied for today’s Times).

This approach was in contrast to the news conference held in Gloucester in May 2011 by NOAA Administrator Jane Lubchenco, who was directed to meet with fishermen, issue an apology on behalf of then Commerce Secretary Gary Locke (now ambassador to China) and announce the reparations.

Blank issued no apology, and instead emphasized that the transgressions were a small minority of the cases studied by Swartwood and that NOAA had learned from the first Swartwood report, fixing the dysfunctions in law enforcement, notably agents and lawyers “left on their own with unbridled discretion and insufficient guidance.”

 

Read the full story at the Gloucester Times

 

 

NEW BEDFORD, Mass. — December 15, 2012 — Acting Commerce Secretary Rebecca Blank Friday ordered the repayment of $543,500 to 14 individuals or businesses that were wrongly prosecuted for fishing violations by NOAA law enforcement.

Almost all of the cases are in the Northeast, said the Commerce Department in its announcement.

The new repayments are in addition to $649,527 ordered returned to 11 complainants in May 2011.

 U.S. Sen. John Kerry, D-Mass., said in a statement that he is pleased that the Commerce Department has come clean about its lapses, though much of the damage will never be repaired.

"Special Master Swartwood has done a great service by shedding light on what happened in a very dark chapter in New England. It would've been inexcusable to just sweep it under the carpet," Kerry said. "Secretary Blank's ongoing efforts to provide reparations to fishermen who were abused is very important, as is her determination to make sure that the culture at NOAA has changed and never, ever reverts back to the ugliness of this period."

Others criticized the Commerce Department for taking so long with these appeals, about three years.

Mayor Jon Mitchell, a former federal prosecutor who appeared in front of Swartwood when he was a magistrate, said, "The report is a long time in coming and it appears to confirm some of which we already knew, that the NOAA general counsel's office in Gloucester abused its authority to the detriment of hard-working fishermen here and elsewhere.

"I applaud Swartwood's efforts to shed daylight on a very dark chapter," Mitchell said.

U.S. Rep. John Tierney, D-Mass., said "It took far too long, far too long to get this resolution. What this has done is give us examples of what the fishermen were going through."

Tierney didn't accept that this is all there was. Instead he called it "the tip of the iceberg."

He also said he wonders how systematic the abuses were. "I'd like to look to see if there's a pattern, whether it's more widespread."

Tierney said the enforcement officers knew they had the upper hand. "Fishermen tell me they're small-business people and they can't afford to even fight these fines," he said.

He said he has filed legislation to redirect forfeiture money into an account outside of NOAA law enforcement and spend it on better fishery research and other ways to help the industry.

 

Read the full story at the New Bedford Standard-Times

 

 

NEW BEDFORD, Mass. — December 14, 2012 — Acting Commerce Secretary Rebecca Blank today ordered the repayment of $543,500 to 14 individuals or businesses that were wrongly prosecuted for fishing violations by NOAA law enforcemenent.

Most of the cases are in the Northeast, said Commerce in its announcement.

Further, $151,266.66 in debt for two other cases will be forgiven.

One of the repayments went to Carlos Rafael, owner of dozens of boats out of New Bedford. He will get back $17,500 of a $25,000 penalty for using a too-small “twine top,” which limits bycatch.

Since there was only $29.50 worth of bycatch and because it was the boat’s first time using the equipment, the penalty was deemed excessive.

The announcement by Blank is the end product of the second part of a two-part investigative report by a special master, retired Judge Charles B. Swartwood III. His report has been kept under wraps since last winter, fueling speculation about what might be in it. The 500-page report itself has yet to be released.

The new repayments are in addition to $649,527 ordered returned to 11 complainants in May, 2011.

In the 63 total cases reviewed in the second rounds, the special master recommended no action in 45 of them.

 

Read the full story in the New Bedford Standard Times

 

 

 

 

December 14, 2012 — Acting Commerce Secretary Rebecca Blank today announced the decision to make reparations totaling $543,500 to 14 victims of fisheries law enforcement excesses and forgive another $151,266.66 for two other complainants whose cases were studied by a special judicial master.

The reparations and forgiveness of debt were decided based on series of 66 case studies by the master, Charles B. Swartwood III, whose report totalling more than 500 pages was submitted to Blank more than eight months ago.

The announcement of the decisions to resolve the complaints against law enforcement actions taken by National Oceanic and Atmospheric Administration agents was made about noon, and was not immediately accompanied by the report itself. The announcement did not identify the cases, making it impossible to know any details.

“Today marks the end of an extensive investigation into the conduct of NOAA’s enforcement program going back nearly two decades,” said Blank. “In the course of acknowledging and rectifying mistakes, NOAA has instituted sweeping changes to its enforcement program to ensure that fisheries enforcement is fair and effective. It’s time to close the door on this chapter of NOAA’s past and move forward.”

The announcement, however, said, Blank released the report. The Department of Commerce communications office did not respond to calls.

 

Read the full story at the Gloucester Times

 

 

December 14, 2012 — The Department of Commerce has released a redacted version of the special master, Judge Charles B. Swartwood, III (ret.) concerning applications of review of NOAA enforcement actions.

The following paragraphs are excerpted from the report.

Several of the Enforcement Attorneys have argued that in the review process “basic tenets of judicial review should apply” and that review of Agency action must be based solely on the administrative record. (Case 206: Response by EA Deirdre Casey, p. 2.) Enforcement Attorney Charles Juliand echoes this assertion when he complains that this investigation involves “subjective determinations by a person or persons unfamiliar with the process who seem to rely more heavily on ex parte communications from interested parties than upon an analysis of substantive rights in light of established law and policy.” (Case 228: Response by EA Charles Juliand, pp. 1-2.) I disagree with these assertions. This investigation does not involve judicial review. It is an investigation of complaints about an abuse of process. In order to investigate a complaint, it is necessary to interview the complainant. Additionally, all NOAA personnel involved in a case have been given ample opportunity to respond to an applicant’s complaint. In some cases, those responses have been lengthy and are usually supported by referenced exhibits.

The Enforcement Attorneys further argue that complainants are bound by their settlement agreement and that those agreements cannot be set aside except for fraud or duress. (Case 206: Response by Deirdre Casey, p. 2.) EA Casey cites to civil case authority for this proposition of contract law. However, this review is an equitable proceeding based on fundamental fairness and common sense and is not subject to either the rigid confines of judicial review or traditional concepts of common law. The best example of a similar Executive prerogative is the authority of the President to grant a pardon. It is a permitted discretionary action not subject to any particular or existing standard and not subject to review. Additionally, this review is part of an inquiry by the Secretary of Commerce concerning enforcement practices within NOAA. As such, it is an Executive Branch function not governed by principles applicable to Judicial Branch proceedings.

In the Conclusion to my April 2011 Report, I noted a pattern by Enforcement Attorneys (EAs) of assessing high monetary penalties in a manner that unfairly forced settlement. Report and Recommendation of the Special Master concerning NOAA Enforcement Action of Certain Designated Cases (Apr. 2011). I have seen that same pattern emerge in reviewing the cases included in this Report and in some instances have recommended relief because of that procedure. The EAs argue that if the fishermen, vessel owners or fish dealers believed that the penalty assessment and/or proffered settlement was excessive, they had the option to appeal their cases to a Coast Guard ALJ. As pointed out in my previous Report and confirmed by every fisherman, vessel owner, fish dealer and lawyer interviewed for this Report, there was a universal perception that a Coast Guard ALJ, after hearing, would affirm both liability for the alleged violation and the originally assessed penalty. Therefore, every fisherman, vessel owner and fish dealer that was faced with an excessive penalty assessment was willing to accept a proffered settlement for a base amount, even if that amount was excessive because of the perceived likelihood that the original excessive assessment would be affirmed if appealed to a Coast Guard ALJ. This perception and the ability of NOAA Enforcement Attorneys to seize the catch and impose a substantial permit sanction gave EAs a substantial advantage in settlement negotiations and enabled them in certain cases to force unfair settlements.

I have recommended relief in several cases where an excessive penalty assessment led to an unfair settlement. However, there are also cases where I have found the penalty assessment to be excessive, but that the resulting settlement was fair. Therefore, the determining factor has been not the original assessment but rather the resulting settlement.

 

Read the report here

 

 

December 14, 2012 — Acting Commerce Secretary Rebecca Blank announced that NOAA will return an additional $543,500 fines to 14 fishermen and will forgive $151,266.66 in debt for two others.

The second report from the special master, Judge Charles B. Swartwood III (ret.), will be released later today.

Senator John Kerry stated "The release of this second report is an important step. I'd heard so many horror stories from our fishermen which is why I requested this investigation three years ago. I don't think I've ever seen an investigatory process like this go back eighteen years to right wrongs and dig into the history of multiple Administrations. Obviously it's again confirmed and exposed the stories so many fishermen brought to me in the first place, and while it can't undo the damage that was done to peoples' livelihoods, I still believe that getting the truth out and providing economic relief and reparations is key to repairing the  damage in the relationship between our fishermen and enforcement authorities.

“Special Master Swartwood has done a great service by shedding light on what happened in a very dark chapter in New England. It would've been inexcusable to just sweep it under the carpet. Secretary Blank's ongoing efforts to provide reparations to fishermen who were abused is very important, as is her determination to make sure that the culture at NOAA has changed and never, ever reverts back to the ugliness of this period."

Acting Secretary of Commerce Rebecca Blank Orders New Fishery Enforcement Penalties Returned to Some Fishermen and Businesses

Today’s action completes review of past cases dating back to 1994 to address complaints about conduct of NOAA enforcement program

December 14, 2012

WASHINGTON – In another step to reinforce the Commerce Department’s commitment to fair and effective enforcement of U.S. fisheries, Acting Secretary Rebecca Blank announced today that the National Oceanic and Atmospheric Administration (NOAA) will return fines to some fishermen based on the recommendations of an independent review. This review was conducted by a special master, Judge Charles B. Swartwood III (ret.), appointed by former Commerce Secretary Gary Locke in 2010 following on complaints about actions dating back to 1994. Acting Secretary Blank’s decision memo and the special master’s 554-page report closes the investigation of past cases involving complaints about the conduct of NOAA’s enforcement program.

Acting Secretary Blank’s decision memo directs NOAA to return a total of $543,500 to 14 complainants and to forgive the outstanding $151,266.66 in debt for two additional complainants. These individuals or businesses will receive their remittances within 30 days of receipt of payment information. The special master’s report she also released today found that NOAA personnel had in some instances “overstepped the bounds of propriety and fairness.” However, the report reaffirms that the agency has taken significant steps to reform the enforcement program by bringing in new leadership and establishing policies and procedures to ensure fairness and transparency.

“Today marks the end of an extensive investigation into the conduct of NOAA’s enforcement program going back nearly two decades,” said Acting Secretary Blank. “In the course of acknowledging and rectifying mistakes, NOAA has instituted sweeping changes to its enforcement program to ensure that fisheries enforcement is fair and effective. It’s time to close the door on this chapter of NOAA’s past and move forward.”

In the memo issued today, Acting Secretary Blank accepted the special master’s recommendation of no action in 45 of the 63 total cases. For the remaining 18 cases in which remission or forgiveness of penalties was recommended, she accepted nine and changed the other nine to:

• Increase the amount to be forgiven or remitted for two recommendations because her review of facts and materials involved led her to include that they do not go far enough to remedy unfair enforcement conduct.

• Reduce the remittance for one recommendation involving conduct toward an on-board NOAA observer because it is essential that NOAA observers be able to depend on cooperation when they go out to sea on fishing vessels.

• Reject two recommendations and reduce remittance for four recommendations because the fishermen involved were either fishing inside a closed area or fishing without a permit, and the penalty was assessed against the proceeds from a catch that was seized. Letting these fishermen retain the proceeds of a catch taken in violation of fisheries management regulations, whether intentional or not, would allow them the economic benefit from a catch that was unlawful and would be unfair to fishermen who abide by the rules.

“Acting Secretary Blank and I met in Washington, DC to discuss her reactions to my recommendations,” said Special Master Swartwood. “We had a lengthy discussion about the specific complaints for which she reached a conclusion that differed from my recommendation, and she outlined her reasons for doing so. I understand her rationale and believe the decisions she has made are reasonable and appropriate.”

The process leading to today’s announcement began in June 2009, when the Commerce Department’s Office of Inspector General (OIG) commenced a comprehensive investigation of NOAA enforcement cases dating back to 1994. This investigation was launched in response to concerns from the commercial fishing community and members of Congress. The OIG released its final report on September 23, 2010, detailing instances of alleged misconduct by NOAA law enforcement officials. That same day, former Commerce Secretary Gary Locke appointed a special master to review these cases.

Special Master Swartwood released the findings from his first investigation on May 17, 2011, recommending remittance totaling $649,527 for 11 complainants. Over the course of this investigation, other fishermen whose cases were not already under review came forward requesting consideration. Former Secretary Locke subsequently announced another special master’s investigation in March 2011 to ensure all of these cases were also reviewed. The results of this second investigation were released today. In addition, upon taking office, Acting Secretary Blank asked her staff to gather more information regarding NOAA’s response to the issues identified in Special Master Swartwood’s 554-page report and used this information to finalize her decision memorandum for today’s announcement. In doing so, Acting Secretary Blank sought assurances that NOAA had put changes into place to prevent future actions similar to those dating back to 1994.

During the past two years, Special Master Swartwood has reviewed hundreds of thousands of pages of documents, conducted over 100 interviews, and produced two reports totaling over 700 pages of text with over 7,000 pages of exhibits. As a result of the two reports under the direction of Secretaries Locke and Blank, the Commerce Department has directed NOAA to remit a total of over $1.1 million in penalties and forgive over $150,000 in outstanding debt. Of the 93 total cases reviewed, 27 were remitted or forgiven. 23 of these 27 cases originated in the Northeast Region.

 

Read the decision memorandum here

 

 

ROCKLAND, Maine — December 7, 2012 — A Maine man told a marine patrol officer that he "couldn't help himself" when he snared more than $1,000 worth of elvers. But it's going to cost him dearly.

A Knox County jury on Friday convicted a 44-year-old Gary Hallett of Hancock of fishing for elvers during a closed period. That means he'll lose his right to harvest the valuable baby eels during the upcoming season, in addition to paying criminal and civil violations.

The Bangor Daily News says Hallett had netted one-half to three-quarters of a pound of elvers before being caught by police on April 7.

The Marine Patrol officer said the price of elvers ranged from $1,200 to $2,400 per pound, meaning the bucket contained as much $1,600 worth of elvers.

 

Read the full story in the Portland Press Herald

 

 

WASHINGTON – Dec. 6, 2012 — Today in a letter to the Department of Commerce (DOC), House Science Investigations and Oversight Subcommittee Chairman Paul Broun, M.D., a Georgia Republican, requested the release of two unredacted reports, authored by Judge Charles B. Swartwood, reviewing potential abuses by National Oceanic and Atmospheric Administration (NOAA) personnel toward individuals in the fishing industry.

Yesterday, Senator John Kerry, Chairman of the Senate Foreign Relations Committee, and a Massachusetts Democrat,  urged the immediate release of the most recent Swartwood report.  The first Swartwood report was released in redacted form in 2011.  

Judge Swartwood completed one report in 2011, and the second was completed earlier this year, but DOC has yet to release the second report.  Several troubling concerns raised in the first report have prompted Chairman Broun to question the delay.  Concerns from the 2011 report include:

“First, there is a siege mentality throughout the fishing industry.  Fishermen and fish dealers believe that they are treated like criminals…”

“In this Report, I have documented several cases of aggressive enforcement by NOAA personnel that have resulted in the OIG investigation, my investigation and the consequent recommendation of relief for several fishermen and fish dealers…”

“It is a common belief among fishermen on the East Coast that there is little or no chance of success before a Coast Guard ALJ [Administrative Law Judge] and that NOAA and the Coast Guard ALJs work hand‐in-hand…This perception is not lessened by the fact that both parties can appeal the ALJ decision to the NOAA Administrator.  There is little or no confidence in the NOAA Administrator’s neutrality on such an appeal…”

“These are serious issues,” said Chairman Broun.  “In my letter to Acting Secretary Rebecca Blank, I have also identified other areas of concern to the Committee relative to NOAA, a bureau within the DOC, involving personnel issues.  The Investigations and Oversight Subcommittee’s involvement and requests for information in the other cases have generated incomplete or no responses.  It is my hope that as the head of the Department with jurisdiction over NOAA, Acting Secretary Blank will set an example and provide Congress with the unredacted second Special Master’s Report, along with the unredacted copy of the first report completed in 2011.”

“Moreover, Dr. Blank’s compliance will have the added benefit of helping to make the case for this Administration’s commitment to transparency in its federal agencies,” Chairman Broun continued.  “Conversely, if she declines to be responsive to a congressional request for information, it will raise serious questions about the Judge’s findings regarding NOAA’s enforcement program,” Chairman Broun concluded.

Read Chairman Paul Broun's letter to Acting Commerce Secretary Rebecca Blank

Read the redacted version of the first Swartwood report as released by the Department of Commerce in 2011

 

 

NORFOLK, Va. — September 18, 2012 — North Carolina is taking a tougher stance on recreational fishing rule-breakers.

The North Carolina Department of Environment and Natural Resources Marine Fisheries Commission late last year adopted new laws that will place recreational anglers under the same violation schedule as commercial fishermen.

The laws go into effect Oct. 1, and violators could lose their licenses for anywhere from 30 days to two years.

“Fishermen will face longer license suspensions for most violations,” Louis Daniel, director of the Division of Marine Fisheries, said in a press release. “However, non-resource-related violations will no longer count against suspension or revocation of a license.”

The state started its Coastal Recreational Fishing License in 2007, but it included no laws that would result in losing a license for violating fishing rules. The new law changes that.

Minor convictions accumulated over a three-year period could result in anywhere from a 30-day to 90-day suspension of an anglers’ license. Four or more convictions in a three-year period will result in a one-year revocation of an anglers’ license. That angler would have to apply for reinstatement after one year.

 

Read the full story at the Virginian-Pilot